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John T. Floyd

Use Of Extraneous Offense Evidence In Child Sexual Assault Cases

In an August 15, 2012 post, we pointed out that “common law has long recognized the fundamental principle that an accused is entitled to be tried solely on the criminal charge leveled against him by the State; that he should not have to simultaneously defend against other alleged criminal activity or for being a criminal in general.”


Extraneous Evidence


Article 38.37 of the Texas Code of Criminal Procedure was enacted by the Texas Legislature in 1995. The statute allowed for the admission of evidence of extraneous sexual misconduct by a defendant against a victim named in the indictment “for its bearing on relevant matters.”  This new evidentiary rule was immediately criticized by criminal defense attorneys as giving the State a license to prosecute a defendant for generally being a “child molester.”


Then things got worse. Art. 38.37 was amended in 2013 by the Legislature allowing state prosecutors to introduce extraneous evidence of sexual misconduct with children other than the one named in the indictment. This evidence could be introduced in the prosecution’s case in chief child. The new section 2(b) of the article greatly expanded the State’s ability to use what is commonly known as “extraneous crimes” evidence to demonstrate a defendant’s proclivity for sexual misconduct with children.




Under the pre-2013 version of § 38.37, the State had to serve notice on the defendant of its intention to use extraneous acts involving the victim and the court, upon proper request by the defense, was to instruct the jury that it could consider this evidence in the narrow context of 1) showing the state of mind of the defendant and the child and 2) establishing the previous and subsequent relationship between the defendant and the child.


Article 38.37 created continuing tension between the prosecution and the defense. The prosecution knew that in a close case, especially where there was only the word of the child to make its case, the evidence of sexual acts against other children would compel a jury to more readily find guilt in the charged offense. In its analysis of the 2013 amendment, the Texas Senate Research Center advised lawmakers:


“Evidence of prior, similar offenses against other victims will provide prosecutors with a much-needed tool to assist them in showing a defendant’s propensity for committing these types of crimes. This, in conjunction with the evidence presented in the current case, may help to prove beyond a reasonable doubt in a juror’s mind that the defendant is in fact guilty.”  In common language, the legislature allowed a jury to find guilt based on the adage of “where there is smoke, there’s fire.”


New 38.37 Allows Admission for “Any Purpose”


New Section 2(b) still requires a notice and a hearing by the court to determine the admissibility of the extraneous evidence; however, the State can now introduce extraneous evidence of sexual misconduct with other child victims(s) and the court must instruct the jury that it can consider this evidence for any purpose.


In a December 19, 2009 post, we made this observation—one that is shared by virtually every criminal defense attorney—about the prejudice inherent in extraneous evidence: “It is often the most dangerous, prejudicial evidence introduced in a criminal trial, especially in cases of child sexual assault where the evidence of guilt is generally no more than the victim’s testimony. That’s exactly why the State uses extraneous offense evidence in these cases: to bolster a weak case. Prosecutors know jurors. Some will frequently have a reasonable doubt about a child victim’s testimony but will set those doubts aside when the prosecution presents extraneous offense evidence to bolster that testimony.”


Additional Objections, Balancing Test


In addition to the 38.37 hearing, defense must also object under Rule 403 of The Texas Rules of Evidence.  This evidentiary rule requires the trial court to weigh the probative value of the extraneous offense evidence against any unfair prejudice it could have on the defendant.


Last year, February 9, 2016, the Fourteenth District Court of Appeals in Distefano v. State held that even where extraneous offense evidence may be relevant under Section 2 of Art. 38.37, the trial court must still conduct a Rule 403 balancing test upon a proper objection or request by the defendant. This means a trial court can still find that the § 38.37(2) evidence is relevant, but refuse to admit it if he or she finds “its probative value is substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.”


The Distefano court also rejected a challenge that the Legislature, by enacting and amending § 38.37, violated the separation of powers doctrine in the Texas Constitution and interfered with the judicial core power by “(1) requiring a trial court to admit evidence of extraneous offenses, (2) allowing a prosecutor ‘the power to obtain a de facto consolidated trial,’ and (3) ‘unduly interfering with a trial court’s nondiscretionary [obligation] to conduct a Rule 403 analysis.”


Finally, the Distefano court turned back a constitutional challenge that § 38.37 violates the Due Process Clause of the Fourteenth Amendment on the premise that it “erodes the accused’s presumption of innocence and allows the defendant to be tried on charges not alleged in the indictment.”


It has long been a recognized constitutional rule that a person accused of a crime cannot be found guilty absent proof beyond a reasonable doubt of “every fact necessary to constitute the crime with which he is charged.” The Distefano court specifically found that § 38.37 does not lower the bar on the State’s burden of proof.


We disagree. Extraneous evidence often simply consists of additional testimony offered without corroboration or proof. Its veracity is too often presumed by most lay people and jurors. The prosecution uses this evidence in child sexual assault cases for no other reason than to inflame the minds of the jury; to instill the picture of a defendant as a “child molester.” Once that image is planted in the minds of the jury, the presumption of innocence in the crime charged is simply disregarded by most jurors. Prejudice overwhelms reasonable doubt.


In cases that inflame conscience, especially those involving sex crimes against children, the deck is already stacked against the accused.  There are few criminal allegations that lead so easily to wrongful conviction.  It is irresponsible to pass legislation that lowers the bar for prosecutors.